Thursday, December 24, 2009

Last week, the Philadelphia Inquirer published a four-part series providing a stunning expose of the Philadelphia criminal justice system. Some of the most disturbing findings were:

*Only one in 10 people charged with gun assaults are convicted of that charge;*Nationally, big city prosecutors win felony convictions in 50-percent of violent cases. In Philadelphia prosecutors win 20-percent;*For three consecutive years, Philadelphia has had the highest violent crime rate of the nation's ten largest cities;*Philadelphia has about 47,000 fugitives who have jumped bail.

Most startling is that for a quarter-century the Inquirer has been reporting about the inadequacy of Philadelphia's criminal justice system. In 1973, the Inquirer reported, "It is a system that really is no system at all and it has very little to do with justice." In 1986, they reported, "In a two-year investigation of Philadelphia's courts, the Inquirer has found a system that often delivers anything but justice." Now the Inquirer reports, "It is a system that all too often fails to punish violent criminals, fails to protect witnesses, fails to catch thousands of fugitives, fails to decide cases on their merits-fails to provide justice."

The series raised even more concerns. The system is rife with witness intimidation. Over 300 people a year are charged with witness intimidation and 13 witnesses, or their family members, have been murdered in the last decade. Then there is the embarrassing "bring-down problem." Until some recent changes, county officials had failed to bring defendants from county lock-up to the courtroom in one in four cases.

The future for Philadelphia is less than bright. For instance, if the city was successful in rounding up the nearly 47,000 fugitives walking city streets, the local jail would be filled five times over. For Philadelphia the bail jumping problem can't be solved. There are some more promising possibilities for some of Philadelphia's other criminal justice problems. However, is there the will to see those changes through?

Philadelphia will have a new district attorney in January. Seth Williams told the Inquirer, "We have to change this." Time will tell, and it appears that the Inquirer won't soon let Williams forget.

Wednesday, December 9, 2009

On his blog Sentencing Law & Policy Douglas A. Berman, a law professor at Ohio State University, asked and answered whether opponents of lethal injection were pleased with the single drug execution carried out by the state of Ohio.

Does this development (the execution of Kenneth Biros by a single drug injection) really please any who complained vociferously about the old three-drug protocol? If any of the strenuous opposition to three-drug protocols was really focused only on possible suffering by the condemned while being executed, these opponents should be going out to celebrate tonight. But I have long suspected that most (if not all) vocal opponents of three-drug lethal injection protocols are categorical opponents of the death penalty more generally, and thus I suspect there will be little celebration within this crowd tonight.

There are many problems with today's death penalty. Much of it relates to intellectually dishonest arguments that are on the periphery of the fundamental issue: Should the state be carrying out executions?

I acknowledge that reasonable people can differ on the propriety of the death penalty. That should be the debate, not whether one drug or three is a better way to carry out an execution. Unfortunately, Ohio's successful one drug execution will not settle the argument.

During the 19th century executions were public spectacles. Hangings were often witnessed by large crowds. Children propped on their parent’s shoulders to see the last bit of life strangled out a convicted criminal. The last public execution in the United States was carried out on August 14, 1936 in Owensboro, Kentucky. It was reported that nearly 20,000 people crowded around the gallows to witness the execution of Rainey Bethea. He was convicted of the rape and murder of a 70-year-old woman.

The murder was committed on June 7, 1936. Bethea pled guilty, was sentenced and his state and federal appeals were disposed of by August 5, 1936. He was executed a little more than a week later. The state of Kentucky was portrayed in a less than favorable light by the throng of media that descended on Owensboro for the hanging. The Kentucky legislature, embarrassed by the unfavorable attention, moved to abolish public executions.

In the years leading up to Owensboro, in many towns across America, the actual execution was the jaw-dropping spectacle that attached itself to the ultimate punishment meted out by the criminal justice system. In modern America, the spectacle is not the execution, those are conducted behind prison walls, but rather the incongruous legal maneuvering that results in endless delays and intense pain for the family and friends of victims.

Kenneth Biros may be the nation’s best example of the modern spectacle of capital punishment. Biros admitted to killing Tami Engstrom. He contended that the murder occurred as a result of a drunken rage. The facts indicated that Biros had inflicted 91 injuries upon Engstrom prior to her death by strangulation. Her body was dismembered and buried in several places across two states. Biros was convicted of first-degree murder by a Trumbull County jury. Eighteen-years later he remains alive in an Ohio prison. Rainey Bethea was executed 68 days after his crime.
Biros was originally scheduled to die on March 20, 2007. The witnesses were notified. Transferred to Lucasville Prison, the site of Ohio’s death chamber, Biros even had his last specially requested meal right down to the blueberry ice cream.
The governor refused his clemency request and the Federal 6th Circuit Court of Appeals dismissed Biros’, and eight other inmates, law suit challenging the constitutionality of lethal injection. They suggested that the three-drug cocktail that anesthetizes, paralyzes and ultimately stops the heart were volatile of the Eighth Amendment ban against cruel and unusual punishment.

The Ohio Attorney General asked the court to permit the state to execute Biros even though he had an appeal pending. The 6th Circuit, the same court that tossed out Biros’ claim, also tossed out the Attorney General’s request to lift the stay of execution. A desperate appeal by the Attorney General to the United States Supreme Court was denied in a one line order hours after the scheduled time for Biros’ execution.

While Biros continued to sit on death row, the U.S. Supreme Court, in the case of Baze v. Rees, rejected a challenge to Kentucky's method of lethal injection. The court held that lethal injection did not violate the Eighth Amendment.
In the wake of a botched execution in September, Ohio became the first state in the nation to adopt a single-injection method for executing condemned inmates; a process that state officials believe will avoid violating the constitutional ban on cruel and unusual punishment and prevent any further embarrassing execution malfunctions. The single large dose of anesthetic is similar to the method used by veterinarians to euthanize pets and livestock.

So who do you think Ohio scheduled to be the first person executed under this new method of execution? Kenneth Biros, he is scheduled for execution on December 8, 2009. Biros previously challenged the three-drug cocktail as cruel and unusual punishment. Now he is challenging the constitutionality of the single drug injection. Biros’ attorney said, “The state should not make his client a guinea pig.”

Just as reasonable people in Kentucky were dismayed by the spectacle of a public execution, so too are reasonable people today dismayed by a death penalty that been eviscerated by vexatious claims and dilatory practices.

About Matt

An analysis of crime and punishment from the perspective of a former prosecutor and current criminal justice practitioner.
The views expressed on this blog are solely those of the author and do not reflect the opinions or postions of any county, state or federal agency.